Marshall v. G.D.C.I. Food Service

United States District Court, S.D. Georgia, Statesboro Division

April 26, 2018

JAMMIE L. MARSHALL, Plaintiff,v.G.D.C.I. FOOD SERVICE, Defendant.

ORDER

J.
RANDAL HALL, CHIEF JUDGE

Plaintiff
is presently confined at Johnson State Prison in
Wrightsville, Georgia. Plaintiff, proceeding pro se,
initiated the present action with the filing of a complaint
pursuant to 42 U.S.C. § 1983 regarding events allegedly
occurring while he was an inmate at Rogers State Prison
(“RSP") in Reidsville, Georgia. (Doc. 1; see
also Doc. 7, ¶ 5.) In his complaint, Plaintiff
alleged that: (i) his left hand was seriously injured while
operating improperly-maintained equipment at a canning plant
while he was on work detail at RSP on or about December 22,
2015; and (ii) a doctor took an unreasonable amount of time
to review his records in connection with his aforementioned
injury. (See Doc. 1, at 3-5, 8.) Plaintiff
subsequently filed a motion to proceed in forma
pauperis. (Doc. 3.)

On
December 5, 2017, the United States Magistrate Judge
conducted an initial review of Plaintiff's pleadings and
other filings and entered a report and recommendation
(''R&R") wherein he recommended that
Plaintiff's complaint be dismissed for failure to state a
claim and that this case be closed. (Doc. 5.) Indeed, with
regards to Plaintiff's allegations concerning
improperly-maintained equipment at the canning plant, the
Magistrate Judge concluded that: (i) Plaintiff's
allegations regarding the improperly-maintained equipment was
more appropriately considered a "negligence-based
tort" rather than a claim under Section 1983; (ii)
Plaintiff had failed to indicate whether Defendant G.D.C.I.
Food Service (''G.D.C.I") was a private
corporation (as opposed to "an arm of the Georgia
Department of Corrections" insulated from suit under
Section 1983 by the Eleventh Amendment); and (iii) even if
G.D.C.I, was a private corporation subject to suit,
Plaintiff's allegations against G.D.C.I, appeared to be
based solely upon theories of respondeat superior or
vicarious liability (which are non-cognizable under Section
1983). (Id. at 4-6.) Further, with regards to
Plaintiff's allegations concerning a doctor's delayed
review of his medical records, the Magistrate Judge concluded
that: (i) Plaintiff failed to make sufficient factual
allegations in his complaint to demonstrate deliberate
indifference to his medical needs; and (ii) Plaintiff had
failed to name the relevant doctor as a defendant in this
case and/or explain how G.D.C.I, could be held liable for
that doctor's (in)actions. (Id. at 6-9.) For
these reasons, the Magistrate Judge also denied
Plaintiff's motion to proceed in forma pauperis.
(Id. at 10.)

On
December 21, 2017, the Court received Plaintiff's
objections to the R&R. (Doc. 7.) Therein, Plaintiff
asserted his belief that he had set forth sufficient factual
allegations to survive dismissal. (Id. ¶ 3.)
Further, while Plaintiff admitted that he "possibly
inadvertently omitted some of the facts when preparing his
final draft of the complaint, " he asserted it was error
for the Magistrate Judge to not grant him leave to amend his
complaint "to add the omitted facts." (Id.
¶ 4; see also id. ¶¶ 5-16 (attempting
to set forth additional factual statements in support of his
claims, including that Plaintiff had advised "prison
detail officers" and "canning plant maintenance
personnel on numerous occasions" regarding issues with
the machinery that caused his injuries).) Plaintiff further
stated that he "was under the impression that he was
simply to name the part of the Department of Corrections to
which he was assigned to as a defendant in his
complaint" and, similarly, that "refer[ring] to the
doctor's actions and inactions" was sufficient to
have him included as a defendant in this
action.[1] (Id. ¶¶ 17-18.)

After
conducting an independent and de novo review of the
entire record, this Court adopted the Magistrate Judge's
R&R as its own opinion on January 23, 2018. (Doc. 8 (the
"Dismissal Order").) Accordingly, the Court
dismissed Plaintiff's complaint for failure to state a
claim and closed this case. (Id.)

On
February 5, 2018, the Court received Plaintiff's instant
motion seeking reconsideration of the Dismissal Order. (Doc.
10.) Therein, Plaintiff requests that he be allowed to submit
an amended complaint that "correct[s] any and all failed
claims . . . [and] include[s] all names that the Magistrate
Judge has deemed that Plaintiff has failed to mentioned [sic]
in [his] complaint." (Id.) Plaintiff, however,
did not attach a copy of his proposed amended complaint to
his motion seeking reconsideration.

Here,
the Court concludes that the aforementioned defects
identified in Plaintiff's claims may have been curable
via amendment. Accordingly, the Court was obligated to give
Plaintiff at least one opportunity to cure before dismissing
his action with prejudice for failure to state a claim.
See Carter v. HSBC Mortgage Servs., Inc., 622
Fed.Appx. 783, 786 (11th Cir. 2015) (''A pro
se plaintiff . . . must be given at least one chance to
amend the complaint before the district court dismisses the
action with prejudice, at least where a more carefully
drafted complaint might state a claim. This is true even
where the plaintiff does not seek leave to amend until after
the district court enters final judgment." (internal
quotations and emphasis omitted) (citing Bank v.
Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991), overruled in
part by Wagner v. Daewoo Heavy Indus. Am. Corp., 314
F.3d 541, 542 (11th Cir. 2002) (en banc))). Therefore, the
Court will vacate the Dismissal Order and grant Plaintiff the
opportunity to amend his complaint.

Accordingly,
upon the foregoing and due consideration, IT IS
HEREBY ORDERED that Plaintiff's motion for
reconsideration (doc. 10) is GRANTED and the
Dismissal Order (doc. 8) is VACATED.IT IS FURTHER
ORDERED that the portion of the Magistrate
Judge's R&R (doc. 5) in which the Magistrate Judge
denied Plaintiff's motion to proceed in forma
pauperis in this matter is VACATED. IT IS
FURTHER ORDERED that Plaintiff is GRANTED
LEAVE TO AMEND his complaint as to both of his
substantive claims. If Plaintiff wishes to proceed forward
with this case, he SHALL file his
forthcoming amended complaint by the close of
business on Thursday, May 17, 2018; Plaintiff's
failure to file his forthcoming amended complaint within this
time-period as directed may result in the dismissal of this
action with prejudice without further notice.[2] Upon the timely
filing of Plaintiff's forthcoming amended complaint, the
Magistrate Judge is DIRECTED to perform a
frivolity review of the amended complaint, consider the
merits of Plaintiff's motion to proceed in forma
pauperis in light thereof, and enter further orders
herein as appropriate to move this case towards resolution.

ORDER
ENTERED.

---------

Notes:

[1] Notably, while Plaintiff only
specifically named G.D.C.I, in the caption of his complaint,
he did style the case as "Jammie L. Marshall v.
G.D.C.I., et al." (See Doc. 1, at 1
(emphasis added).)

[2] The amended complaint must be typed or
printed legibly so that the Court may discern Plaintiff&#39;s
claims, and it will supersede and replace in its entirety the
previous pleadings filed by Plaintiff; no portion of any
prior pleading shall be incorporated into his amended
complaint by reference. See Hoefling v. City of
Miami, 811 F.3d 1271, 1277 (11th Cir. 2016); Lowery
v. Alabama Power Co., 483 F.3d 1184, 1219 (11th Cir.
2007) ("an amended complaint supersedes the initial
complaint and becomes the operative pleading in the
case"). While Plaintiff may attach exhibits to his
amended complaint, he shall not incorporate them by reference
as a means of providing the factual basis for his pleading.
For example, Plaintiff should not simply state, "see
attached documents, " as the Court will not
independently examine exhibits that Plaintiff does not
specifically reference (by the exhibit's page number) in
his amended complaint. Moreover, Plaintiff shall submit only
one amended complaint in accordance with the terms of this
Order. Therefore, Plaintiff shall state in the single amended
complaint filed in accordance with the terms of this Order
all claims ...

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